15-year-old student sues stating that the teaching of evolution in school violates her rights and insults her religious beliefs.  Link to article… http://www.foxnews.com/story/0,2933,236417,00.html

Everybody is doing it, and has been for quite a while.  That’s the conclusion of a study of trends in premarital intercourse over the past half-century.  Link to article.  http://www.washingtonpost.com/wp-dyn/content/article/2006/12/19/AR2006121901274.html?referrer=emailarticle

Hopeful parents wanting to adopt children from China will find new restrictions in 2007.  Link to article in NY Times http://www.nytimes.com/2006/12/19/world/asia/19cnd-adopt.html?ex=1167195600&en=fe3b08a5b00ad1ec&ei=5070&emc=eta1

Arkansas judges will look to Arkansas Code Annotated 9-12-315 when making property division determinations in a divorce.  Here’s A.C.A. 9-12-315 in its entirety:

§ 9-12-315. Division of property 

   (a) At the time a divorce decree is entered:

   (1) (A) All marital property shall be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration:

         (i) The length of the marriage;

         (ii) Age, health, and station in life of the parties;

         (iii) Occupation of the parties;

         (iv) Amount and sources of income;

         (v) Vocational skills;

         (vi) Employability;

         (vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;

         (viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and

         (ix) The federal income tax consequences of the court’s division of property.

      (B) When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the order entered in the matter.

   (2) All other property shall be returned to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable taking into consideration those factors enumerated in subdivision (a)(1) of this section, in which event the court must state in writing its basis and reasons for not returning the property to the party who owned it at the time of the marriage.

   (3) (A) Every such final order or judgment shall designate the specific real and personal property to which each party is entitled.

      (B) When it appears from the evidence in the case to the satisfaction of the court that the real estate is not susceptible of the division as provided for in this section without great prejudice to the parties interested, the court shall order a sale of the real estate. The sale shall be made by a commissioner to be appointed by the court for that purpose at public auction to the highest bidder upon the terms and conditions and at the time and place fixed by the court. The proceeds of every such sale, after deducting the cost and expenses of the sale, including the fee allowed the commissioner by the court for his or her services, shall be paid into the court and by the court divided among the parties in proportion to their respective rights in the premises.

      (C) The proceedings for enforcing these orders may be by petition of either party specifying the property the other has failed to restore or deliver, upon which the court may proceed to hear and determine the same in a summary manner after ten (10) days’ notice to the opposite party. Such order, judgment, or decree shall be a bar to all claims of dower or curtesy in and to any of the lands or personalty then owned or thereafter acquired by either party.

   (4) When stocks, bonds, or other securities issued by a corporation, association, or government entity make up part of the marital property, the court shall designate in its final order or judgment the specific property in securities to which each party is entitled, or after determining the fair market value of the securities, may order and adjudge that the securities be distributed to one (1) party on condition that one-half ( 1/2) the fair market value of the securities in money or other property be set aside and distributed to the other party in lieu of division and distribution of the securities.

(b) For the purpose of this section, “marital property” means all property acquired by either spouse subsequent to the marriage except:

   (1) Property acquired prior to marriage or by gift or by reason of the death of another, including, but not limited to, life insurance proceeds, payments made under a deferred compensation plan, or an individual retirement account, and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or by a payable on death or a transfer on death arrangement;

   (2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;

   (3) Property acquired by a spouse after a decree of divorce from bed and board;

   (4) Property excluded by valid agreement of the parties;

   (5) The increase in value of property acquired prior to marriage or by gift or by reason of the death of another, including, but not limited to, life insurance proceeds, payments made under a deferred compensation plan, or an individual retirement account, and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or by a payable on death or a transfer on death arrangement, or in exchange therefor;

   (6) Benefits received or to be received from a workers’ compensation claim, personal injury claim, or social security claim when those benefits are for any degree of permanent disability or future medical expenses; and

   (7) Income from property owned prior to the marriage or from property acquired by gift or by reason of the death of another, including, but not limited to, life insurance proceeds, payments made under a deferred compensation plan, or an individual retirement account, and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or by a payable on death or a transfer on death arrangement, or in exchange therefor.

(c) The court is not required to address the division of property at the time a divorce decree is entered if either party is involved in a bankruptcy proceeding.

The cases interpreting section 315 are far too numerous to be listed here.  But, here are a few major points to remember:

• Generally, marital property is split 50-50.  However, keep in mind that the court has the power to make an unequal division of marital property if the circumstances call for it.  This would be unusual, but not unheard of.  (See Lytle v. Lytle, 266 Ark. 124 (1979); Cavin v. Cavin, 308 Ark. 109 (1992))
• Marital fault is not a factor in division of property.
• Although the presumption is that nonmarital property owned prior to the marriage shall be returned to the party who owned it originally, occasionally nonmarital property may be divided.  (See Williford v. Williford, 280 Ark. 71 (1983)).  But see Hale v. Hale, 307 Ark. 546 (1992) and Farris v. Farris, 287 Ark. 479 (1985), both holding that nonmarital property acquired during the marriage cannot be divided.
• Marital property may include property acquired after separation, but before divorce is final.  This time period is usually after the divorce complaint is filed and before the divorce decree is entered.  (See Askins v. Askins, 288 Ark. 333 (1986))

As always, make sure you keep your attorney advised of any and all property interests and when and how they are/were acquired.

We know coaches have been available for lawyers for many years now.  But coaches for clients?  Here’s an interesting article noted by Stephanie West addressing this innovative idea.  http://westallen.typepad.com/idealawg/2006/12/first_coaches_f.html#trackback

Historically we (family law attorneys) have advised our clients of the pitfalls of appealing domestic relations decisions.  “You have to show abuse of discretion.”  “You have to show that the trial judge made major mistakes, and that’s hard to do.”  “Most appeals are lost.”  “You’ll end up paying me (attorney) alot of money and we won’t win.”  And there’s good reason for saying all of these things to our clients…its true!  However, the Arkansas Court of Appeals last Wednesday reversed a custody award, a property division determination, and an alimony award…all in the same case.  Here’s the link  http://courts.state.ar.us/opinions/2006b/20061206/ca06-660.pdf

In Arkansas, the presumption is that the custodial parent may move to another state with the children unless the non-custodial parent rebuts that presumption with evidence at a hearing.  The court will look to several factors, all of which come from the case Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), which provides:

“The polestar in making a relocation determination is the best interest of the child and the trial court should take into consideration the following matters: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; and (5) preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference.”

Two days ago, the Arkansas Court of Appeals remained steadfast in its position that the burden is on the non-custodial parent to prove that the relocation is not in the best interests of the children, and further, that the non-custodial parent better be prepared to provide compelling evidence if he/she intends to rebut the presumption.  Here’s the link to Trout v. Moreton, CA06-430 (Ark. App. Dec. 6, 2006)  http://courts.state.ar.us/unpublished/2006b/20061206/ca06-430.pdf

We have all heard statements relating to the number of lawsuits being filed these days.  This article (http://www.footnotetv.com/mwcivil.html) provides some interesting statistics on the number of lawsuits filed; success of plaintiffs; and punitive damages.  The article was last updated in 2004, and some of the information is prior to that time, but I think we would see similar results today.

In fact, if someone can point me to more recent data, please send it my way and I’ll get it up on the blog.

Note to lawyers:  No surprise to me that many lawsuits are bounced by judges prior to trial.  Although I was a little surprised by the high percentage.  But check out the success of plaintiffs having bench trials as opposed to jury trials.  I would not have suspected that.

Here’s another site with some 2000 data.  (first page is economic data so be sure to go on to the next pages.) http://www.ncsconline.org/D_Research/csp/2001_Files/2001_Civil.pdf

Hiring an attorney can be about as enjoyable as going to the dentist.  Here are some tips to ease the pain:
·         Ask those you trust about attorneys they know.
·         Make sure the attorney has experience in your type of case.  If you are divorcing, do not hire an attorney that only handles personal injury cases, and vice versa.
·         Ask the attorney about legal fees and costs of the case.  Yes, they are two different things.  Fees are what will be paid to the attorney for his time.  Costs are expenses for your case – court fees, subpoena fees, court reporter costs for depositions, copies, postage, etc.
·         Ask the attorney questions.  Does he understand what you want to accomplish?  Follow your intuition – if you do not like his answers, then you will probably not like his services.

The last couple of years texting has grown exponentially in popularity.  Especially among teenagers.  Teenagers would rather send text messages back and forth instead of talk on the phone - maybe even instead of talking in person.  The explanation I get from other parents of teenagers is that texting gives the teen an opportunity to be more candid and more at ease since the person he/she is talking to is not actually physically present.  The teen can now “talk” to the other person in a more open way.

I never thought much about this whole texting business until recently my wife and I discovered that our 13-year-old son had a girlfriend.  Fine.  That he sees her maybe once a week because they go to separate schools.  Fine.  And that their only means of communication is to text each other (throughout the day and evening) because she says she can’t understand him on the telephone.  Um…not so fine.  They have broken up with each other at least twice (and gotten back together), had numerous arguments (and resolved them), and had deep meaningful conversations…all without actually speaking to each other.

Don’t get me wrong.  No, I do not want them meeting behind the gym and “doing what teenagers do there.”  That’s not the point.  The point is that part of being a teenager, or a human being for that matter, is learning to interact with your peers, and that includes the opposite sex.  It is preparation for life.  How would these two act if they actually spent any meaningful amount of time together in the same room?  Would they retreat to opposite corners and start texting?

So much of today’s society is about preserving our individual privacy.  I think that’s great.  I think texting is great.  I love being able to send my wife a quick message if need be instead of calling her on the phone.  But when texting takes the place of human interaction?  That is a dangerous road.

Teenagers are the most prodigous users of text messages.  Here’s an article on the subject.  http://www.theshiftedlibrarian.com/archives/2005/01/10/texting_taking_off_in_the_us_with_teens.html